Created: 08/17/2014 3:10 PM WHEC.com
By: Associated Press
The whistleblower who spurred a state investigation of the 1971 Attica prison uprising is still on the case four decades later.
Ex-prosecutor Malcolm Bell, now 82 and retired to the Green Mountains of Vermont, recently filed papers in support of opening long-sealed investigation volumes about the retaking of the prison in western New York that left 29 inmates and 10 prison staff members fatally shot.
Bespectacled, his hair now gray, Bell remained soft-spoken and matter-of-fact while discussing his aggressive pursuit of the full story and suspension as a prosecutor in 1974. He has also recently finished a new epilogue to his 1985 book about the case.
"I am certain that my superiors in the investigation were afraid that the system was going to work, and that's why they shut me down," Bell said.
Bell joined Attorney General Louis Lefkowitz's Organized Crime Task Force in 1973 and spent the next year building grand jury cases toward indicting a half-dozen state troopers for murder or manslaughter, 60 or 70 for reckless endangerment, and several ranking officers for what he believed was a cover-up. He was first reassigned from the shooting cases to the cover-up cases, then reassigned out of the grand jury, then suspended, in what he now regards as an effort by Lefkowitz to protect GOP Gov. Nelson Rockefeller.
The 1,300 inmates who rioted over conditions and controlled part of the maximum-security prison had clubs, knives and makeshift weapons and had killed a guard and threatened to kill hostages. Negotiations broke down. They were tear-gassed. Police had rifles, shotguns and pistols and wore gas masks. Some guards also fired guns.
Rockefeller gave the order to retake the prison. Two years later, he was on his way to becoming vice president.
"The officers of Attica fired over 450 times, hitting 128 people and killing 10 hostages and 29 inmates," Bell wrote in a 1976 newspaper column. "Insofar as those shots were not fired to save someone from an imminent threat of death, they were not justified and were probably criminal."
Bell, an Army veteran, Republican and former corporate lawyer, came to the task force looking for a new career direction. When he became convinced his boss deliberately thwarted his efforts to indict officers, he complained directly and then through channels. He was suspended for an unauthorized meeting with a confidential source and resigned.
He wrote to Lefkowitz and later sent a 160-page report to Gov. Hugh Carey, describing in detail what he believed was a failure to pursue justice and a cover-up.
Carey appointed Judge Bernard Meyer to investigate Bell's allegations. Meyer found "important omissions" in evidence gathered by state police but no intentional cover-up by prosecutors. He was later appointed by Carey to the Court of Appeals, New York's highest court.
"Though Bell's charge of a cover-up has proved not well founded and in some parts was based more on emotion than on fact, a substantial portion of the public shared his misgivings," Meyer wrote.
Bell found himself with few options and started a private law practice. He says he has no regrets.
Michael Smith, a corrections officer taken hostage and shot when the prison was retaken, called Bell one of the most morally committed people he's ever known and said Bell's account squares with his own recollections.
"His position cost him his career," Smith said.
In 1976, Carey pardoned seven inmates, barred disciplinary action against 20 troopers and guards, and commuted the murder sentence of one inmate. A reckless endangerment indictment against one trooper had already been dismissed. Lawsuits ended years later.
Bell wants the last two Meyer Commission volumes out in the open now, even if any details prove him wrong. What he really wants to see is how Meyer justified his conclusions, what evidence he cited or left out and "how he managed not to see the role of the people in charge - Rockefeller and Lefkowitz."
The union representing 3,500 uniformed troopers and 3,000 retirees, including about 40 who were at Attica, opposed releasing the volumes, saying painstaking investigations concluded no criminal wrongdoing by troopers.
"I heard a lot of shooting, but it was tough to tell who was shooting and who was shooting at who," recalled Thomas Constantine, an investigator who went into the prison yard behind uniformed troopers. His handgun was out, but he didn't shoot; the gas masks, tear gas and rain added to the confusion, he said. A sergeant at the time, he later rose to become police superintendent. "I never saw anything in the way of a cover-up," he said, noting it would have been way above his pay grade.
A state judge ruled in April that Attorney General Eric Schneiderman, who has the last two volumes, can make them public after removing grand jury testimony. Schneiderman has said it's time to reveal the full history of the nation's bloodiest prison rebellion.
According to Bell, among Attica's chief lessons is that the best way to cover something up is to investigate it.
"You've got to go through the appearance of doing the job," he said. "That's what they did."